Opinion
No. 6961.
March 24, 1942.
APPEAL from the District Court of the Third Judicial District of the State of Idaho, for the County of Boise. Hon. Charles E. Winstead, Judge.
Suit to quiet title. Decree for plaintiff and respondent. Affirmed.
Claude V. Marcus and Hawley Hawley for Appellants.
The court erred in holding that respondent had valid title to the Lux claims for the reason that the location was invalid as to respondent because of the use of the dummy locator, Henrietta R. Penrod, and in an action of this nature it is proper for appellants to raise such point. (Lindley on Mines (3rd ed.), p. 1062, Sec. 450; Ricketts' American Mining Law, p. 413, Sec. 724; Morrison on Mining Rights (16th) ed.), p. 262; Mitchell v. Cline, 84 Cal. 409; 24 P. 164; Gird v. California Oil Co., 60 Fed. 532; Cook v. Klonos, 164 Fed. 529; Nome Sinook Co. v. Snyder, 187 Fed. 385; Durant v. Corbin, 94 Fed. 382.
J.B. Eldridge for respondent.
In any controversy between private claimants to mining claims, to which the Government of the United States is not a party, the question of dummy locators may not be raised by any private litigant; but if considered the question of dummies only applies when dummies are used as a scheme to acquire more ground than allowable; and this must be done by pre-arrangement before location. ( Riverside Sand and Cement Mfg. Co. v. Hardwick, 120 P. 323; Morrison's Mining Rights, 16th Ed. 262; McKinley Creek Mining Co. v. Alaska Un. Co., 183 U.S. 563, 46 L.Ed. 331. (by Supreme Court of U.S. and cases therein cited.); Ricketts American Mining Law, note 37 page 413.
March 19, 1940, W.C. Brassey, in his own name and in the names of Eric Dokka, Mary J. Brassey, John Dokka, Henrietta R. Penrod, George Stiles, Joe Ellis and Jane Ellis, with the knowledge and consent of all except Henrietta R. Penrod, located certain placer mining ground situate in the Placerville mining District of Boise County, Idaho, called the Lux Claim; and on the same day W.C. Brassey and his wife, Mary J. Brassey, located other placer mining ground situate in the same mining district and called the Lux No. 2. Thereafter to-wit, March 21 and March 22, 1940, Fred T. Peck and Anne Peck, his wife, made an attempted location of the same placer ground, with the exception of forty acres not involved in this litigation. August 9, 1940, the above named locators of the Lux group by quitclaim deed conveyed to Brassey all their right, title and interest in or to that group. October 19, 1940, Brassey commenced this suit to quiet title to the Lux and Lux No. 2 groups. Fred T. Peck and his wife, Anne Peck, answered and filed a cross-complaint. By their cross-complaint they sought to quiet title to the placer mining ground covered by the Lux and Lux No. 2 groups, with the above exception. The main controversy and cross-suit were tried April 18, 1941, upon the Brassey complaint and the Peck answer thereto, and the Peck cross-complaint and the Brassey answer thereto. May 6, 1941, findings of fact and conclusions of law in favor of plaintiff and against cross-complainants were made and filed and on the same day a decree was entered thereon quieting plaintiff's title to the placer mining ground in question. May 7, 1941, the Pecks made a motion for a new trial. June 4, 1941, the motion was denied. July 30, 1941, they appealed from both the order and the decree. Appellants specify the following alleged errors:
1. "The court erred in holding that respondent had valid title to the Lux claim heretofore mentioned for the reason that this location was invalid as to the respondent because of his unauthorized use of the dummy locator, Henrietta R. Penrod.
2. "The court erred in granting respondents' motion to strike appellants' location notices in view of the fact that the stipulation interdicted any objection respondent might have had to the court receiving the location notices in evidence.
3. "The court erred in holding that the affidavits on appellants' location notices were improperly made, thus rendering the location notices void and of no effect."
It will not be necessary to consider or determine the second and third assignments of error if the question presented by the first assignment cannot be raised in this suit.
The fact, even though true, that a "dummy" is used in the location of a mining claim, is not available to a private litigant, and is "a matter in which the government alone is interested, and of which it alone can take advantage. . . . the law has been finally settled that the government alone is concerned, and the same is not relevant in a contest between individuals, except in adverse proceedings, wherein the government is a silent party." (Emphasis ours.) Riverside Sand and Cement Mfg. Co. v. Hardwick, 16 N.M. 479,120 P. 323; 1 Lindlay on Mines, par. 234; McKinley Creek Mining Co. v. Alaska United Mining Co., 183 U.S. 563, 22 Sup. Ct. 84, 46 L.Ed. 331; Tornanses v. Melsing, 109 Fed. 710, 47 C.C.A. 596; Wilson v. Triumph Consolidated Mining Co., 19 Utah 66, 56 P. 300, 75 Am. St. Rep. 718.
Moreover, in Dunlap v. Pattison, 4 Idaho 473, 476, 42 P. 504, this court held that "a person may locate a mining claim in the name of himself and others named in the notice of location, and, when so located, title will be good in the others not present and having no notice of the location," following the holding in the early case of Morton v. Solambo Copper Mining Co., 26 Cal. 527.
Finally, there is no evidence in the record indicating that respondent acted in bad faith or with intent to defraud in adding the name of Henrietta R. Penrod to the other locators of the Lux group; and the location of that group and "Lux No. 2" being prior to appellants', and valid, it follows the judgment appealed from must be affirmed, and it is so ordered, with costs to respondent.
Givens, C.J., Budge, Morgan, and Ailshie, JJ., concur.